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Commentaries on the law of negligence in all relations online

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question for court or for servant exists is a question

jury. of fact for a jury.

§ 4877. Questions of Pleading in Fellow-Servant Cases. 1 — If a com-
plaint in an action for the death or injury of a servant states facts
showing the accident was caused through the intervention of a fellow
servant, then, in order to state a cause of action, it must set up a
condition of facts which shows that, notwithstanding the interven-

" Lawless v. Connecticut River "Campbell v. Harris, 4 Tex. Civ.

R. Co., 136 Mass. 1. App. 636; s. c. 23 S. W. Rep. 35.

n Toomey v. Avery Stamping Co., a Houston &c. R. Co. v. Rider, 62

20 Ohio C. C. 183; s. c. 11 Ohio C. Tex. 267.

D. 216; Felch v. Allen, 98 Mass. * See post. § 4905.

VOL. 4 THOMP. NEG.— 57 897

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4 Thomp. Neg.] the fellow-servant doctrine.

tion of the act of the fellow servant, the master was negligent either
(1) in failing to furnish safe and suitable appliances and machinery,
or (2) in employing the servant through whose negligence the acci-
dent happened, he being incompetent or unfit. la If the action is
grounded upon the incompetency or unfitness of the fellow servant,
then the plaintiff must allege that he did not "know of such incompe-
tency or unfitness. 2 A complaint which avers that the defendant
knowingly placed an incompetent person in charge of engines and
boilers in its blast furnace, and that the plaintiff, who was a fellow
servant of such person, was injured by the latter^s negligent acts,
does not show any causal connection between the incompetency of
such person and the injuries to plaintiff, and therefore does not
take the case out of the fellow-servant rule. The complaint should
show, directly or by reasonable inference, from some allegation of
fact, that the negligence complained of was the result of the incom-
petency. 8 A petition or complaint, in an action for personal injuries
to a railway brakeman alleged to have been caused by the negligence
of the conductor, averring that such conductor was incompetent and
that the company knew of his incompetency, or might have known of
it by due care and diligence, and that plaintiff had no knowledge
thereof, — was held good on general demurrer, notwithstanding the
other allegations showed the conductor to be the brakeman's fellow
servant. 4 Where a complaint shows on its face that the plaintiff was
injured in consequence of the negligence of a fellow servant, and no
facts are alleged taking the case out of the fellow-servant rule, then it
is not necessary for the defendant to plead that the -plaintiff was
injured in this way, but the objection may be raised by the demurrer
to the complaint. 5 If a petition avers facts showing that the negli-

*a American Sugar-Ref. Co. v. s. c. 58 Pac. Rep. 375. A complaint

Johnson, 60 Fed. Rep. 503; Ameri- in an action by a section-hand for

can Sugar-Ref. Co. v. Tatum, 60 injuries caused by being struck by

Fed. Rep. 514. defendant's hand-car, which was

'Dunmead v. American Min. &c. negligently operated by the section-
Co., 4 McCrary (U. S.) 244. It was master, in whose charge it was,
also held in this case that the plain- must set out the name of the person
tiff must allege that the injury was in charge of the car, or that his
not caused or contributed to by his name is unknown to plaintiff: Cen-
own negligence; but this is no tral &c. R. Co. v. Lamb, 124 Ala.
longer the rule in the Federal 172; s. c. 26 South. Rep. 969. A
courts: Vol. I, § 366. declaration, in an action against a

•JKliefoth y. Northwestern Iron railroad company for personal in-

Co., 98 Wis. 495; s. c. 74 N. W. Rep. juries to an employe; sufficiently

356. shows that the negligence of the

4 Campbell v. Cook, 86 Tex. 630; employs which caused the accident

s. c. 26 S. W. Rep. 486; rev'g s. c. was not that of a fellow servant, in

(Tex. Civ. App.), 24 S. W. Rep. 977 averring that plaintiff was a fence-

(no off. rep.). builder, that the employe who care-

• Mann v. O'Sullivan, 126 Cal. 61; lessly injured him was a locomotive-


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[2d Ed.

gence complained of by the injured employ6 was that of a vice-prin-
cival, .it will support a judgment in favor of such employ^ against his
employer, although it may also contain averments not established by
the evidence, charging the defendant with negligence in retaining
such vice-principal in its employ after knowledge of his incompe-
tency. 6 So, the declaration need not allege that the co-employ6 whose
negligent act caused the injury was not a fellow servant with the
plaintiff. 7 The defense that a servant's injuries were caused by the
negligence of his fellow servants is admissible under a general denial.*

§ 4878. Question of Fellow Servant or Vice-Principal, Whether a
Question for Court or for Jury. — The question whether the servant
through whose negligence or misconduct another servant of the same
master is killed or injured is a fellow servant of the killed or injured
servant, or a vice-principal of the master, within the meaning of the
rule und^r consideration, is plainly a question of law for the court
where the facts are established or conceded ; 9 in other cases it is a
question for the jury, under proper instructions from the court as to
what constitutes one servant a fellow servant of another; 10 in other

engineer, and that while the plain-
tiff was attempting to get on a car
for a proper purpose he was injured
through the negligence of the en-
gineer in suddenly starting the
train: Louisville Ac. R. Co. v. Haw-
thorn, 147 111. 226; s. c. 35 N. B.
Rep. 534; afTg s. c. 45 111. App. 635.
A complaint in an action against a
railway company under a statute
making railroad companies liable
for damages sustained by an em-
ploye 1 without contributory negli-
gence when such damage is caused
by the negligence of any train-dis-
patcher, telegraph-operator, super-
intendent, yardmaster, conductor,
or engineer, or of any other' em-
ploye having charge or control of
any stationary signal, target-point,
block, or switch, must show clearly
the relation relied upon between the
negligent party and the company,
and the proofs must be confined to
the allegations made: Albrecht v.
Milwaukee &c. R. Co., 87 Wis. 105;
s. c. 58 N. W. Rep. 72.

•Clark v. Hughes, 51 Neb. 780;
s. c. 71 N. W. Rep. 776.

7 Duffy v. Kivilin, 98 111. App.
483; s. c. aff'd, 195 111. 630; 63 N. E.
Rep. 503.

•Kaminski v. Tudor Iron Works,
167 Mo. 462; 8. c. 67 S. W. Rep. 221.

•MacCarthy v. Whitcomb, 110
Wis. 113; s. c. 85 N. W. Rep. 707;
Duffy v. Kivilin, 98 111. App. 483;
b. c. aff'd, 195 111. 630; 63 N. E. Rep.
503; Ashmore v. Charleston Light
&c. Co., 99 111. App. 262. See also,
Chicago City R. Co. v. Leach, 80
111. App. 354 (unless different con-
clusions can be drawn from the
proved facts and from the infer-
ences to be drawn from them);
Chicago &c. R. Co. v. Driscoll, 176
111. 330; 8. c. 52 N. E. Rep. 921
( Magruder J., dissenting) ; Yates
v. McCullough Iron Co., 69 Md. 370;
b. c. 16 Atl. Rep. 280; Norfolk &c.
R. Co. v. Hoover, 79 Md. 253; s. c.
29 Atl. Rep. 994; 25 L. R. A. 71.

10 Shedd v. Moran, 10 111. App.
618 (whether the foreman whose
negligence Inflicted the injury and
the servant who received the injury
were in the same* line of employ-
ment, so as to make them fellow
servants, was held to be a question
of fact for the jury; so that an in-
struction that they were not fellow
servants was error) ; Illinois &c. R.
Co. v. Swisher, 74 111. App. 164
(question of fact whether switch-
men and the enginemen, and an en-
gineer and a fireman, were fellow
servants); Malott v. Crow, 90 111.
App. 628 (is one of fact to be de-


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4 Thomp. Neg.] the fellow-sebvant doctrine.

words, it is what is sometimes called a mixed question of law and fact,
— the meaning being that it is for the court, by appropriate instruc-
tions, to define the relation of fellow servknts, and for the jury to
determine whether the relation, as thus defined, in fact existed. 11
Where the solution of the inquiry depends upon a disputed question
of. fact with respect to which the evidence speaks both ways, then the
question is always for the jury. 12

§ 4879. Examples of Questions of Fact for the Jury in this Rela-
tion. — The following examples may be given of questions of fact for
the jury under the preceding statement of doctrine: — Whether the
proximate cause of the fall of a shaft by which a servant was injured
while it was being lowered was the failure of a fellow servant so to
hitch the chain as to prevent it from slipping; 18 whether the injury

determined by the jury under
proper instructions from the court
as to what constitutes fellow serv-
ants); Maxwell v. Zdarski, 93 111.
App. 334 ("question for the jury,
If there was any evidence to war-
rant them in finding that he was
such vice-principal"); Norton v.
Nadebok, 190 111. 595; s. c. 60 N. E.
Rep. 843 (plaintiff was operator's
helper; evidence tended to show
that operator had authority to di-
rect the movements of the helper,
that he stopped the machine and or-
dered the helper to put his hand
in and remove an obstruction, and
that, without waiting for the
helper to withdraw his hand, the
operator started up the machine
and injured the helper, — whether
they were fellow servants was held
to be a question for the jury) ;
Perras v. Booth, 82 Minn. 191; s. c.
84 N. W. Rep. 739; 85 N. W. Rep.
179; Devine v. Tarrytown &c. Gas-
light Co., 22 Hun (N. Y.) 26
(whether a superintendent of a gas
company was to be regarded as the
alter ego of t^e company, and
whether he was an improper person
for his position) ; Cincinnati Ac. R.
Co. v. Thompson, 21 Ohio C. C. 778;
s. c. 12 Ohio C. D. 326 (whether a
fireman and a brakeman are fellow
servants is a question for the jury) ;
Hass v. Philadelphia &c. S. S. Co.,
88 Pa. St 269 (whether a night-
watchman who was injured by the
negligence of a stevedore acting
under a special contract to unload
the steamer was a fellow servant


of the stevedore. There was no
evidence that the company had
placed the entire charge of its busi-
ness in £he hands of either the
master or chief stevedore, so as to
make their negligence its negli-
gence. It was left to the jury to
say whether chief stevedore was a
simple agent — with the instruction
that if he Was, the company was
liable; but if he was in an inde-
pendent employment, the company
was not liable) (per curiam deci-
sion, following Mullan v. Phila-
delphia Ac. S. S. Co., 78 Pa. St 25 H.

11 Consolidated Coal Co. v. Grubw,
91 III App. 15; s. c. aft'd, 188 Id.
584; 59 N. E. Rep. 254; Potter 7.
Chicago Ac. R. Co., 46 Iowa 399.

"Dallemand v. Saalfeldt, 175 111.
310; s. c. 17 Nat Corp. Rep. 439;
51 N. B. Rep. 645; aff'g s. c. 73 111.
App. 151; 15 Nat. Corp. Rep. 698.

"Knight v. Overman Wheel Co.,
174 Mass. 455; s. c. 54 N. E. Rep.
890 (defendant contended that the
shaft fell on account of the slipping
of a cat's-paw hitch made by a fel-
low servant, and that the cat's paw
hitch should have been guarded by
a half-hitch made over it, — instruc-
tion that there was no evidence that
the injury was not caused by the
negligence of a fellow servant held
to have been properly refused, since
the. court could not say what the
proximate cause was, or whether the
fellow servant failed to hitch the
chain properly or not, these being
questions of fact).

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was due to the negligence of a fellow servant in not seeing that the
cable was attached to a car by which the plaintiff was injured before
shoving it down an incline, — the claim of the plaintiff that the cable
was weak and unsafe and that it broke by reason of a slight jerk, being
fully presented; 14 whether the foreman over the servant who was
killed, who had ordered him to load freight on an elevator, and, with-
out warning him, had removed the elevator to another floor for an-
other person to use, so that the intestate backed into the elevator-shaft
with a load and was killed, — was acting as a vice-principal or as a fel-
low servant; 15 whether the continuing in the employment after knowl-
edge of the incompetency of a fellow servant, in consequence of whose
negligence the servant so continuing was afterwards injured, was con-
tributory negligence on his part; 16 'whether the foreman of a section-
gang was guilty of negligence and a member of the gang who was in-
jured was guilty of contributory negligence, where the injured section-
man was struck by a hand-car which he, with others who were riding
thereon, attempted, by order of the foreman, to remove from the track
upon seeing a train approaching, where the foreman ordered the men
to "get out of the way," but too late to enable the plaintiff to avoid
being struck by the hand-car when it was thrown off the track by the
engine; 17 whether a quarryman who was injured by a blast which was
fired while he was operating a derrick upon which another employ^
was at work, was guilty of contributory negligence in failing to aban-
don the derrick and seek a place of safety as soon as he was warned of
the anticipated blast, the evidence being that it was a part of his duty
to lower his fellow employ6s to the ground as soon as the warning of
the blast was given; 18 whether a railway construction company was
negligent in employing an incompetent engineer by whose negligence
another employ^ was injured; 19 whether or not a superintendent was

14 Hennig v. Globe Foundry Co., plaintiff was employed as a locomo j

112 Mich. 616; s. c. 4 Det. Leg. N. tive-engineer by a construction

12; 71 N. W. Rep. 156. company. The collision was due to

"Perras v. Booth, 82 Minn. 191; another engineer of the same com-

s. c. 84 N. W. Rep. 739; 85 N. W. pany operating his {rain without

Rep. 179. the headlight being lighted, and

" Williams v. Missouri Ac. R. Co., entering upon the main track.

109 Mo. 475; 8. c. 18 S. W. Rep. Whether his neglect to light his

1098. headlight, as his duty required,

17 Schroeder v. Chicago Ac. R. Co., arose from the circumstance that

108 'Mo. 322; s. c. 18 S. W. Rep. he was inexperienced and unfit to

1094. be an engineer, was a question for

" Belleville Stone Co. v. Mooney, the jury, where the evidence showed

60 N. J. L. 323; s. c. 38 Atl. Rep. that the night of the accident was

835; s. c. aff'd, 61 N. J. L. 253; 39 the first time that he had had

L. R. A. 834; 39 Atl. Rep. 764. charge of an engine; that for five

19 Newell v. Ryan, 40 Hun (N. or six months prior thereto he had

T.) 286; s. c. affd, 116 N. Y. 656. been a fireman, with no experience

In this case it appeared that the as an engineer except that derived


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4 Thomp. Neg.] the fellow-servant doctrine.

negligent in turning steam into an ordinary whisky barrel used for
hot water in a canning factory, while a vent for the escape of the steam
was closed with a plug, and in failing to caution an employe, when he
directed him to draw water from it, of the danger. 20

§ 4880. When the Question Whether the Relation of Master and
Servant Exists is a Question of Fact for a Jury. — The importance of
this question lies in the consideration that where a person is injured
by the negligence of the servant of another, he may recover damages
from that other, under the rule of respondeat superior, provided he
stands as a stranger to the superior, and not as his servant ; whereas,
if he is a servant of the superior, and hence a fellow servant of the
person who brings upon him the injury, then the fellow-servant rule
applies and he cannot recover damages. Cases sometimes arise where
the question whether he is such servant, and, consequently, such fel-
low servant, is properly submitted to the jury as a question of fact. 21

from a few short trips in the day- a For such a condition of evi-
time. dence, — see Shultz v. Chicago Ac. R.

"Crowell v. Thomas, 90 Hun (N. Co., 40 Wis. 489.
Y.) 193; s. c. 70 N. Y. St. Rep. 651;
35 N. Y. Supp. 936.


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Art. I. Grounds of Liability for such Negligence, §§ 4882-4901.
Art. II. Questions of Procedure in Actions Founded on such Lia-
bility, §§ 4905-4914.

Article I. Grounds of Liability for Such Negligence.


4882. Liability of master for injury

to servant in consequence of
employing or retaining in-
competent, unskillful, ha-
bitually negligent, drunken,
or otherwise unfit fellow

4883. This duty a primary, abso-

lute, and unassignable duty.

4884. This duty discharged by the

exercise of ordinary or rea-
sonable care.

4885. Duty of master to make in-

quiries as to fitness of serv-
ant before employing him.

4886. How far master may rely

upon presumption of serv-
ant's competency and fit-

4887. Right of employer to presume

that person soliciting em-
ployment is competent.

4888. Placing incompetent or unfit

servants over others.

4889. Unfitness of fellow servant

must be the proximate
cause of the injury.
. 4890. Incompetency of volunteers,
intermeddlers and interlo-
4891. Liability of master for em-
ploying servants addicted to


4892. Notice to master of incompe-

tency or unfitness of serv-

4893. Constructive notice of the

master of unfitness of serv-

4894. Knowledge of master of ha-

bitual negligence of his
vice-principal immaterial.

4895. Contributory negligence of

servant in not discovering
unfitness of fellow servant.

4896. In continuing to work with*

fellpw servant known to be

4897. Complaint of incompetency*

or unfitness of fellow serv-
ant and promise to dis-
. charge him.

4898. Unfitness in consequence of
i disease, such as epilepsy.

4899. Liability under statutes for

employing incompetent or
unfit fellow servants.

4900. Instructions to juries on this


4901. Whether existence of grounds

on which master is charge-
able is question of law or


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4 Thomp. Neg.] the fellow-servant doctrine.

§ 4882. Liability of Master for Injury to Servant in Consequence
of Employing or Retaining Incompetent, Unskillful, Habitually
Negligent, Drunken, or Otherwise Unfit Fellow Servants. 1 — The mas-
ter's liability is grounded upon his own personal negligence or upon
the personal negligence of his alter ego or vice-principal; and this
negligence may consist in employing, or retaining in his employ,
incompetent, unskillful, habitually negligent, drunken, or otherwise
unfit servants, through whose incompetency, unskillfulness, negli-
gence, drunkenness, or other unfitness a fellow servant is killed or
injured. In such cases the so-called "fellow-servant rule," la which
exonerates the master from liability, does not apply ; the servant does
not ordinarily assume the risk of injury from the master's negligence
in this particular; 2 but the master is liable by reason of having acted
negligently or wrongfully in selecting or in retaining in his employ
the servant whose negligence or misconduct led to the injury visited
upon the fellow servant. 8 To warrant a recovery for an injury result-

1 See also, ante, § 4048, et seq.

J aHall v. Bedford Quarries Co.,
156 Ind. 460; s. c. 60 N. E. Rep.

8 Hicks v. Southern R. Co., 63 S.
C. 659; s. c. 41 S. E. Rep. 753;
rev'g on rehearing s. c. 38 S. E. Rep.
.725, 866; Rounds v. Carter, 94 Me.
535; s. c. 48 Atl. Rep. 175 (servant
assumes risk of injury from negli-
gence of fellow servant if fellow
servant is competent and fit for the
service required of him) ; Wyman
v. The Duart Castle, 6 Can. Exch.
387 (same statement and qualifica-

■Tyson v. South &c. R. Co., 61
Ala. 554 (yardmaster, an experi-
enced and competent man, with
power to appoint and remove en-
gineers at will, negligently put an
incompetent man in charge of an
engine) ; Louisville &c. R. Co. v.
Davis, 91 Ala. 487; s. c. 8 South.
Rep. 552 (negligence in falling to
put a competent and physically ca-
pable brakeman on a car) ; Mobile
&c. R. Co. v. Smith, 59 Ala. 245;
McDonald v. Hazeltine, 53 Cal. 35
[following McLean v. Blue Point
Gravel Min. Co., 51 Cal. 255]; Mat-
thews v. Bull (Cal.), 47 Pac. Rep.
773 (no off. rep.) (master bound to
exercise ordinary care in the selec-
tion and retention of sufficient and
competent servants properly to con-
duct the business) ; Stephens v. Doe,
73 Cal. 26; s. c. 14 Pac. Rep. 378


(foreman of a mine, and a miner un-
der him, are fellow servants; and
the master is not liable for an in-
jury caused by the foreman, unless
he has failed to use ordinary care
in selecting him) [but see Cali-
fornia cases cited in § 5291, post.
qualifying this doctrine]; Acme
Coal Min. Co. v. Mclver, 5 Colo.
App. 267; s: c. 38 Pac. Rep. 596;
Kindel v. Hall, 8 Colo. App. 63;
s. c. 44 Pac. Rep. 781; Giordano
v. Brandywine Granite Co., 3 Pen.
(Del.) 423; s. c. 52 Atl. Rep. 332;
Ingram v. Hilton Ac. Lumber Co.,
108 Ga. 194; s. c. 33 S. E. Rep. 961
(distinction between the negligence
of a» competent fellow servant and
the unskillfulness of an incompe-
tent fellow servant should be clear-
ly pointed out to the jury) ; Keith
v. Walker Iron &c. Co. f 81 Ga. 49;
s. c. 7 S. E. Rep. 166 (Injury to car-
penter from negligence of mason,
a fellow servant; no recovery if
due care exercised in selecting the
mason); Webster Man. Co. v.
Schmidt, 77 111. App. 49 (master
must exercise all reasonable care
to employ competent and prudent
fellow servants) ; Chicago &c. R.
Co. v. Myers, 83 111. App. 469; Calu-
jnet &c. St. R. Co. v. Peters, 88 111.
App. 112; Fraser v. Schroeder, 163
111. 459; s. c. 45 N. E. Rep. 288;
aff'g s. c. sub nom. Frazer v.
Schroeder, 60 111. App. 519 (inex-
perienced employe^ ordered by his

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ing from the negligence of a fellow servant, the plaintiff must prove
that the servant was incompetent or unfit, and that his master em-

foreman to stop a windlass, so op-
erated a lever as to slip the ma-
chinery into fast gear instead of
into the proper gear to stop it);
Illinois Steel Co. v. Paschke, 51 111.
App. 456; Indiana Man. Co. v. Mil-
lican, 87 Ind. 87 (master liable for
an injury to a servant caused by
the negligence of a fellow servant
hired by him in entire ignorance
of his Qualifications, and without
inquiry in reference thereto) ; Pe-
terson v. New Pittsburg Coal Ac.
Co., 149 Ind. 260; s. c. 63 Am. St.
Rep. 298; 49 N. E. Rep. 8 (prior
to the statutory change in In-
diana which relieved the plaintiff
of the burden of alleging and prov-
ing his own freedom from negli-
gence, he had to allege his ignor-
ance of the incompetency charged);
Brown v. Levy, 108 Ky. 163; s. c.
21 Ky. L. Rep. 1724; 55 S. W. Rep.
1079; Rounds v. Carter, 94 Me. 535;
s. c. 48 Atl. Rep. 175; Blake v.
Maine Cent. R. Co., 70 Me. 60; note
to Norfolk Ac. R. Co. v. Hoover
(79 Md. 253), in 25 L. R. A. 710;
Kean v. Detroit Copper Ac. Mills,
66 Mich. 277; s. c. 9 West Rep.
699; 33 N. W. Rep. 395 (habitual
intoxication); Lyttle v. Chicago Ac.
R. Co., 84 Mich. 289; s. c. 47 N. W.
Rep. 571; Lewis v. Emery, 108
Mich. 641; s. c. 2 Det. Leg. N. 986;
66 N. W. Rep. 569; Crandall v. Mc-
Ilrath, 24 Minn. 127; Smith v. E.
W. Backus Lumber Co., 64 Minn.
447; s. c. 67 N. W. Rep. 358 (negli-
gence of master in retaining in his
employ an habitually careless or
negligent fellow servant, known by
him to be such, by reason of which
another servant is injured) ; Nutz-
mann v. Germania Life Ins. Co.,

78 Minn. 504; s. c. 81 N. W. Rep.
518; s. c. on second appeal, 82
Minn. 116; 84 N. W. Rep. 730;
Loe v. Chicago Ac. R. Co., 57 Mo.
App. 350; Huffman v. Chicago Ac.
R. Co., 78 Mo. 50 (must be shown
that the master knew of the specific
act of carelessness testified to, or
was culpably ignorant thereof) ;
Kersey v. Kansas City Ac. R. Co.,

79 Mo. 362; Grube v. Missouri Pac.
R. Co., 98 Mo. 330; s. c. 10 S. W.
Rep. 185; 11 S. W. Rep. 736; Dy-
sart v. Kansas City Ac. R. Co., 145

Mo. 83; s. c. 46 S. W. Rep. 751;
Nelson v. Kansas City Ac. R. Co.,
85 Mo. 599; Voss v. Delaware Ac.
R. Co., 62 N. J. L. 59; s. c. sub
nom. Delaware Ac. R. Co. v. Voss,
12 Am. A Eng. R. Cas. (N. S.) 820;

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 124 of 165)